Clarence Thomas confirms his belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly. [His words. Seriously.]
The Supreme Court said Monday that people convicted of domestic abuse can be prevented from owning a gun, in a case that prompted the first questions from Justice Clarence Thomas in 10 years.
In a 6-to-2 decision, the court said Congress had intended to keep firearms out of the hands of domestic abusers.
The question for the court was whether the gun ban applies to those convicted under state law of misdemeanor domestic abuse and specifically whether assault convictions for “reckless” conduct could trigger the prohibition. …
The case decided on Monday was brought by two men, including Stephen Voisine, who was separately being prosecuted for killing a bald eagle. He had a previous conviction for a misdemeanor assault of a woman with whom he had a relationship, and federal prosecutors said that meant he should be banned from owning firearms.
The court rejected that argument, finding Monday that “a person who assaults another recklessly uses force no less than one who carries out that same action knowingly or intentionally,” according to the majority opinion by Justice Elena Kagan. She was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Samuel A. Alito Jr.
To accept the interpretation of the petitioners, the majority said, would risk striking down similar laws in 34 states and the District and allowing “domestic abusers of all mental states to evade” the firearms ban. …
In his dissent Monday, Thomas said the firearms ban should apply only to “intentional acts designed to cause harm” — not to those based on “mere recklessness,” which do not necessarily involve the use of physical force.
“The majority fails to explain why mere recklessness in creating force — as opposed to recklessness in causing harm with intentional force — is sufficient,” he wrote.
Thomas was joined in part in his dissent by Justice Sonia Sotomayor.
Separately, he also objected to the imposition of a lifetime firearms ban based on a misdemeanor assault conviction because of its implications for a person’s Second Amendment rights.
“This decision leaves the right to keep and bear arms up to the discretion of federal, state and local prosecutors,” Thomas wrote. “We treat no other constitutional right so cavalierly.”
— Supreme Court: Domestic abusers can be banned from owning firearms, Ann E. Marimow, Washington Post, today
Actually, what Thomas meant by that last sentence is that we treat no other constitutional right so cavalierly that Thomas and his Federalist Society colleagues care about. Ones that don’t concern gun ownership, or the unfettered freedom to buy elected officials, or to adopt a local or state, or the federal, government as your Christian pulpit.
Y’know; the constitutional rights that matter. The ones that garner pro bono defense at the Court by some rightwing legal think tank whose name on a certiorari petition means the petition will actually be read by a justice or two, or three, or four.
And the ones whose certiorari petitioner can foot the $1,000 hourly billing fee totaling well into the six figures, to have the name of one of the tiny handful of Washington, D.C.-based Supreme Court “regulars’” name and law firm on the petition cover—the only other way to obtain actual review of your petition by an actual justice if you’re not represented in that petition by a non-government attorney (i.e., a state attorney general). The petitioners who after paying those attorneys’ fees still have sufficient discretionary income to pay the $8,000 cost for the printing of the certiorari petition as per the extremely weird printing requirements that only three printing companies in the country can do.
Okay, well since the “regulars” get steep discounts at those printing companies, their clients will need considerably less than that full-freight price. Which must be nice.
In any event, precious few others need apply. Although nearly 10,000 others a year do.
Thomas’s veritable stock-in-trade is declaring something as fact that is clearly and facially false, often bizarre, sometimes downright comical. He did that recently in what, happily, was, like this one, a dissent. Thomas claims this time around that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly.
Well, maybe. Then again, it could be that that is just the only one Thomas knows of, since the Court itself has aggressively blocked federal-court review of violations of most constitutional rights involving state and local prosecutors, state courts, and state criminal statutes in the name of state-courts’ rights to violate individuals’ constitutional rights, and since gun-ownership rights are pretty much the only rights that are at issue solely in non-white-collar-crime appeals. And therefore the only criminal-law-related constitutional rights raised in certiorari petitions that he reads.
Which of course explains this one justice’s belief that the only constitutional right we leave up to federal, state and local prosecutors is the right to keep and bear arms. And that that right is the only one, more generally, that we treat so cavalierly.
There are many thousands of Americans who could disabuse him of that belief. Some of them have even filed certiorari petitions.
ADDENDUM: Reader MIJ and I had the following exchange in the Comments thread:
June 27, 2016 11:17 pm
Ok, I’m intrigued – not by Thomas who is predictably irrational, but by the way this vote went.
It appears Sotomayor joined the dissent “in part” while Alito abandoned his partner in the summer stock version of “Dumb and Dumber”.
There has to be a story here.
June 28, 2016 10:50 am
Hi, Mark. This actually doesn’t surprise me. Thomas’s dissent is in three parts. The first two parts attack the majority’s claim that recklessness amounts to the “use of physical force” and “violence.” Those wo parts argue, in my opinion correctly, btw, that the terms “use of physical force” and “violence” denote only intentional conduct and therefore preclude recklessness. Thomas notes that even recklessness that causes a traffic accident is not considered “violence.”
The third part, the part that Sotomayer did not join, sings the praises of an absolutist Second Amendment.
The opinion and dissent are here. (PDF required.)
Alito always—always—sides against the criminal defendant, in criminal cases and habeas cases, with the single exception of cases in which a key aspect (either the conduct of the defendant or the conduct of law enforcement) is something that he can imagine himself being entangled in. The only notable examples are Fourth Amendment cases in which Alito can imagine himself being victimized by an anything-goes nullification of the warrantless-search-and-seizure proscription.
Three or four years ago, Alito wrote an awesome opinion barring law enforcement from sticking a GPS tracker under your car. Alito of course parks his car in his home’s garage and in the Supreme Court’s employee garage, but presumably also, on occasion, in, say, a medical office parking lot or a shopping mall or restaurant one. Scalia, by contrast, apparently didn’t worry about such things; he dissented.
Then, two weeks ago, Alito joined the majority—Thomas dissented—in barring compulsory, warrantless blood tests for suspicion of DUI. Slate’s Mark Joseph Stern wrote a terrific article there last week about the whiplash Fourth Amendment-cases effect, caused sometimes, as happened last week, when two Fourth Amendment opinions are issued within days of each other, this time first an appalling one, then the DUI one. It’s here.
As for Sotomayor dissenting, she’s simply not willing to treat anything related to a narrow definition of domestic violence as per se passing muster simply because domestic violence issues are all the rage these days among progressives. Sotomayor, to her credit, in my opinion, recognizes that once you treat recklessness as intent and violence for purposes of domestic violence you probably will be asked to do so for other things as well. There are differences in law, normally, between recklessness and intent (e.g., manslaughter vs. murder), and it’s dangerous to start conflating the two.
Truth be told, I haven’t read the majority’s opinion, and I’m not sure how domestic violence even can be charged, absent intent. But apparently in this case, under a state statute, it was.
Added 6/28 at 11:35 a.m.